JUSTICE ABRAHAMSON: What I hear -- and I was with you on I don't understand what the big deal is -- you issue the order. If it's so hard to find then they're not going to so easily destroy it, Norm, I would suppose, and if they are into a destruction week then when they get to that I assume they would check any evidence against the list of Do not destroy. But that may be very simplistic in terms of how evidence is really stored.
MR. CLARKE: That's also subject to verification in every agency --
JUSTICE ABRAHAMSON: Right. Sure. I understand that.
MR. GAHN: I guess the issue, having had a number of these and just looking for evidence, and it can be in so many different places, I don't think it makes a difference whether we say shall or may in the final analysis, but it's when that order is issued, at what point. I have no problem getting to a point of privacy concerns that are looming out there larger than just the things we're doing.
And there are groups out there that this stuff -- that I think call out for public discourse and public disclosure discourse and discussion.
MR. ASPLEN: Norm, are you talking about I guess two different propositions; one being should the Department of Justice be more aware of the implications of DNA and its uses and abuses, not from an investigative standpoint in the use of solving crimes but rather in those areas that may come under the jurisdiction of civil division violations? And that seems to me to be a brilliant observation that for two years we haven't really touched upon, but is something that most specifically she can do, to get her own people together to talk about that and be prepared.
And maybe we don't have the cases yet, but to be prepared for instances in which there may be civil rights violations based on that. But I think that's a different proposition than how do we continue to discuss these issues from a broad society standpoint so that we can have the input from all aspects of the system. But yours is one that I think that we can certainly come up with something on that we can work on also.
MR. SMITH: It's interesting. In the information -- the observation that in legislatures decisions about the forensic DNA stuff being made in a stew of political activity, much of it stimulated by DNA activity elsewhere. And I think that's increasingly true. I'd be surprised if the attorney general needed to be told that, but you may be right.
It seems to me there's an awful lot of activity in Congress. There's an awful lot of other places where DNA matters are coming for consideration that would be possibly Department of Justice matters. I don't see it as easily within our grasp to make recommendations about that besides because we haven't been studying it.
JUSTICE ABRAHAMSON: No. But I could see that the introduction to this final report would indicate that it's within -- forensic DNA is within a broader picture of DNA and privacy.
MR. SANDERS: It's a more realistic picture -- if you just showed her all the positives and didn't raise the red flag that the dark side is there, then would we be derelict? That's what I heard Norm say and I agree with him --
MR. GAHN: Yes.
MR. SANDERS: -- and I think we would be derelict in our duties if we didn't mention that.
DR. CROW: It seems to me very likely that forensic uses are going to be dwarfed by medical, especially medical, but other uses of DNA that are potentially very much invasive of privacy, and more obviously invasive of privacy.
MR. SMITH: One of the questions that -- not yet very effectively raised I guess by our working group was in a way this. That is, where the environment, the contextual concerns are moving at the pace they are, or appear to be -- what's the best strategic position for those who have interests in the forensic use of DNA and for investigative use?
Is it to find alliance with these other areas? Is it to point to the danger they represent? Is it to foreswear any -- those are strategic questions that are of great importance and could have powerful implications for public safety. Difficult for this group to do. Our intent was simply to raise those issues, and it is our hope that they would be dealt with in a small part in this November symposium, but in the future; these are strategic issues.
DR. CROW: And are these issues for the National Institute of Justice, or who worries about medical privacy, to raise this question again?
MR. ASPLEN: The answer is not the Department of Justice until such time as you get to the instance that Norm is talking about.
JUSTICE ABRAHAMSON: It could be the NIJ under appropriate leadership in the department.
MR. SMITH: One way to look at it is does NIJ interest here, does Department of Justice interest here, which has to do with the effects on its responsibilities of mismanagement if you like of policy and private enterprise in areas which are -- we now see in the legislature. They're responding to forensic DNA proposals with the aftermath of bad tastes in their mouths from handling insurance and health proposals.
Now, that makes it a justice issue, doesn't it? If nothing else, the ability to be responsible for the stewardship of public safety is affected by how well the rest of this stuff is being done and how sensitively. But beyond that, I don't know how it could be really for justice.
MR. ASPLEN: I think if we look back to some of the things that have gone on in the commission process, let's take a look at the arrestee issue.
When -- about a year and a half ago, when Commissioner Safir started talking about arrestee testing, the national discourse consisted of Commissioner Safir on Larry King Live one night and a representative from the ACLU on Larry King Live the next night, and public perception was being based on that level of discourse. And I think that the commission provided a very important role in raising the level of discourse to a certain intellectual level -- I don't mean to --
VOICE: [inaudible].
MR. ASPLEN: Well, right. And really, that's the way ultimately we dealt with it. And I don't mean to imply that Commissioner Safir's or the ACLU's were not intellectual approaches to it, but raised it to a certain broad-based level of discourse, which was very important on a lot of levels, particularly on a legislative level.
You may remember that we gave you a number of updates at times, saying the number of times that we got phone calls from state legislatures and from federal legislators asking what our position was on it, the attorney general asking what our position was on it, and that's a better way to do things. It's a better way to make decisions.
Now, when those issues come up in the future and when sample retention issues come up in the future, where do they look? I can tell you right now that the Department -- when a DNA issue comes up in the United States Department of Justice, the first place they come right now is the commission. The first -- when the postconviction legislation came to DOJ they called the commission. When statute of limitations issues came up, they came here.
And now that the funding legislation in the House of Representatives is here, the commission is involved through -- obviously through its staff. The commission goes away, that resource isn't there. And on top of that, there is the inherent value of the discourse itself, the inclusion of the different points of view.
MR. SMITH: But that's the key, isn't it? I mean, that's what the commission [inaudible]. Federal offices rarely have that quality, and to recommend the creation of one that does is laudable but quixotic.
If we think that it needs a commission, maybe we should recommend a commission, but apart from that I think we just recognize a big problem. But what proposal do we have that solves that problem except to cry, Watch out. This problem's going to come back and hit you in the backside, unless a permanent commission or something like –
DR. CROW: Would the Department of Justice like to have somebody like this group that it can call up and ask for a position statement? Are we --
MR. ASPLEN: It sounds like a question I'd get from a reporter, and let me try to address the way I would if it was a reporter.
DR. CROW: Yes.
MR. ASPLEN: I would say, I think that the Department of Justice has recognized and received numerous benefits from the commission process, and that the commission has better enabled -- or has enabled it to better handle a number of issues that have come up. But I would have to leave it at that in terms of --
DR. CROW: Who wants it.
MR. ASPLEN: -- who wants it and who would know.
One obvious -- the easy way out is to say, In three of four years another commission like this should be established.
MR. SMITH: We sort of did that, didn't we? In the resolution, if I remember it right about the sample retention issue, what we said was something like in no more than five years a body should be assembled which is not the creature of the labs or the law enforcement interests to revisit the question whether or not it's necessary or desirable to retain samples.
Now, the sample retention issue for a bunch of reasons that we've noticed has within it a lot of these other questions, so I think some of us anyway during that discussion of that resolution were thinking that that body if it actually were created that way would be there at a moment in time, but it might be necessary for somebody to reach out and grab this by the throat again.
Beyond that, how do you recommend that? It seems to me that's -- it's not plausible. We recommend that you create a body that has characteristics of a kind that federal bodies don't have.
MR. GAHN: Why can't we recommend a commission similar to this but made up of a -- the issue five years from now may be who cares about those samples you took at the crime lab because everybody in the world has them now, or who knows what it's going to be? That may be a completely moot point.
But don't we have a responsibility even to recommend maybe you need a commission that's made up not -- pretty much of law enforcement but of medical ethicists, department health and social services, the employment industry, the -- that you need one in some national group that is going to at least be there to look at this stuff, at least be a sounding board for when these really problem -- and issues are going to come and hit this country.
MR. SMITH: Let's hope we have leadership of the country at that moment to appoint such a body. I don't see how we can do it.
MR. ASPLEN: We can't appoint it. I guess the question is can we make the recommendation so that it is out there? And clearly, this attorney general cannot do that and this administration cannot do that. But I guess the issue is should the point be made that this should be done again or something similar to this should be done again?
DR. CROW: I think we have to be subtle. It's such a standard joke about national academy committees that the first thing they recommend is more money for another committee like itself. I'm all for doing this but I think when we're asked about how to do it.
At the same time, is the military a major issue here, with their gathering DNA in enormous quantities?
MS. BASHINSKI: Military data banks are an issue. Yes.
DR. CROW: Yes. Because these may come to the surface faster than the other things we'vebeen talking about.
MS. BASHINSKI: What if we simply made a list of what we consider to be unresolved by us but potentially significant issues or issues which we feel will emerge, and then say nothing about it other than that? Is that subtle enough, too subtle? Rather than just say --
DR. CROW: Not subtle.
MS. BASHINSKI: -- rather than just say the one issue that we've already identified, because there are a number that we could list, I think, that remain unresolved.
MR. ASPLEN: I'm sorry, Jan. Are you saying just list the issues that remain unresolved --
MS. BASHINSKI: Yes. Just --
MR. ASPLEN: -- the potential issues in the future, and --
MS. BASHINSKI: Then leave it there.
MR. ASPLEN: Or maybe add to that, Here's how we think that the commission has been beneficial in dealing with a number of issues that have come up that have benefitted from this kind of discussion.
MS. BASHINSKI: We didn't do this --
MR. ASPLEN: Here are the issues in the future that we think may --
MS. BASHINSKI: Yes. And then just leave it.
MR. ASPLEN: Which in effect would not be a recommendation to the attorney general but would really be a matter of part of the final report, would perhaps be the conclusion, if you will.
MR. SMITH: I want to have Norm keep worrying though, because if you come up with a description of a body that has the quality of open-endedness but also the promise of actually being there in a condition that would be desirable at the moment when it's needed, then there's absolutely no reason on God's earth why you shouldn't recommend it.
MR. GAHN: And I think we should. We're the only national group right discussing DNA issues in -- granted, it's been in a forensic context, but it's affecting all of society because it's law enforcement. We're the only national group and we've seen issues here that we can't address in a forensic context, issues that are going to affect the country at large, and we've seen them and they're out there.
And there should be another national group similar to this made up probably of a completely different group of people, and we should say, You need a group that some day you can go to.
DR. DAVIS: Let me ask another question. We're talking about our knowledge of DNA, but across the street is the agricultural group, Monsanto and the rest. And that is a huge operation which has far greater impetus to move in terms of its financial backing, and that's a big DNA area, and Lord knows what else there is out there in a DNA field. I think we're just a small piece of the pie.
I'd be interested sometime in seeing somebody draw up a pie, and how much is police and forensic and so forth, how much is agriculture, how much is whatever else there is out there? I'm sure there's a lot going on all over the world that we don't know about, or we -- individuals within
the group may know about it, but as the collective group, I don't think we know about it. At least I certainly don't know.
JUDGE REINSTEIN: One of the things you'll see in that report that comes out every week from Tim Schellberg's group is a section that has agricultural aspects of genetics. Another one is regarding medication and genetic discovery. Another one is DNA forensic expansion postconviction, but it's divided up like that. I know there's a section in there regarding agricultural issues.
MR. CLARKE: Well, I'm assuming the report is not an epitaph in the sense that NIJ will continue to make recommendations to the attorney general. Is that correct, on whether a group should be convened, shouldn't be, should be different, et cetera? In other words, the institution itself doesn't die --
MR. ASPLEN: Certainly not. NIJ is bigger than the national commission. But I agree with Michael that that would be purely a matter of the vision of the particular director of NIJ, and this could be --
MR. SMITH: NIJ was almost itself eliminated by Congress not so very long ago.
MR. ASPLEN: Yes. And this is -- as with all things, they have a limited political life. They have a limited media life. DNA seems to be going infinitely longer than I ever thought it would on both counts, which I guess is a good thing, shows my lack of vision. I thought we'd all be tired of this by now, but it doesn't seem to be slowing down at all. But five years from now many of these issues may not in fact be issues.
NIJ doesn't go away, but it would be completely dependent upon who runs it.
JUSTICE ABRAHAMSON: What I hear, which may not be what you all said, but what I hear is a consensus that issues about DNA, both forensic issues and non, will continue. Some of the same issues we've grappled with will be here in the future. Others may not. That the sense of the group is that we recommend in our final report that NIJ and the Department of Justice consider or keep in mind DNA issues and consider forming one or more multi-disciplinary groups to deal with issues that come to the Department of Justice, both the forensic in the criminal justice system and in maybe employment and insurance, which I think the Department of Justice has an interest.
Now, have I captured some of it, none of it, all of it in addition?
DR. CROW: We could certainly say that there are issues that are too futuristic or too big or too difficult for us to have handled, but they're not going to go away.
JUSTICE ABRAHAMSON: And maybe even give some examples, and I like Norm's reference to the dark side -- that's a good phrase -- which are essentially privacy issues, which are of great concern. I think we're going to see an era of -- where privacy is a key concern across the board.
MR. ASPLEN: The issue has been raised that the DAB was statutorily authorized -- Congressionally authorized as a standing matter. Now, I don't know if that's a -- charges the issue more or less. It's certainly more difficult to accomplish, and I'm not sure that the attorney general could have an affect on that.
MS. BASHINSKI: You're suggesting that there be something established legislatively? Is that what you're saying --
MR. ASPLEN: I'm not suggesting. I'm saying that would be one possibility that there be -- that a recommendation be that there be a statutorily authorized body that would review these issues through the attorney general.
MR. SMITH: Unless -- the idea that we might be able to in words describe a future agenda of importance with confidence is a fascinating one. That's why I'd like to see it worried on some more. I'm skeptical about our duty to come up with a form of words which would serve well over a lot of years in an area as fast moving and ill defined as this one.
So I come back to what I said before. That is, one of -- one service we might do, whether it be ultimately a legislatively created permanent standing body or not, is to recommend that at some point in the not too distant future there be created a body, not a permanent body, but a body at that moment whose composition in general terms is described in a way that sounds right to us. Not whose agenda is described by us, but whose composition is described by us, and is given responsibility by our recommendation for something likely to exist at that time.
Now, if that body is any good, and if there are important issues to be seized and it is created, it will seize them and it will do a better job of figuring out what they are than we will today, trying to imagine what that future looks like. So that would be, in my view, probably the most -- strategically the best way to try and do this.
Trying to lay out the agenda for a permanent body strikes me as -- we're no better qualified than Congress, and look what a mess they make of it.
DR. CROW: I agree with all of what you said, but I want to emphasize one aspect, and that is I would not want this to be permanent. I think most groups work pretty well for a while and then they -- I think it's happening to us.
JUSTICE ABRAHAMSON: I tend to agree, and one should note that when this body was set up, we in effect set up our own agenda.
DR. CROW: Yes.
JUSTICE ABRAHAMSON: And grappled with a universe and then had to narrow it to topics that we could handle, and they've evolved according to the interests of the group and their qualifications, et cetera, and did not deal with the universe, cannot deal with the universe, and hope you deal well with what we undertook.
So I would agree with that.
MR. SMITH: As long as you serve as chair?
JUSTICE ABRAHAMSON: Right. Not likely. Okay. Ron?
JUDGE REINSTEIN: Well, in addition to making recommendations -- and sometimes you wonder where those recommendations go -- would it behoove us to have a group when the new administration comes in who would be a liaison for these issues made up of law enforcement, science, prosecution, defense, and the education community, maybe the courts, a limited number of people who would liaison with the new attorney general, deputy -- I don't know what the title is -- the White House, NIJ, and the like to put some life into the recommendations as well?
JUSTICE ABRAHAMSON: We can do that in our report and then rally around when there's a change and see how we do it.
MR. ASPLEN: And because there is a technical life of the commission that extends through 2001 -- although we won't be meeting -- there will be some legitimacy to be able to do that. That would be more of an administrative function by NIJ.
MR. SMITH: There will be transition committee. Right? The transition committee will reach out or not as it's moved. But trying to determine now who the transition committee should talk to strikes me as --
JUSTICE ABRAHAMSON: Yes. But the idea of a transition committee that Ron has just proposed is a very good one.
JUDGE REINSTEIN: And the way that you have the symposium and the last meeting scheduled, it sounds like it's the week of or the week after the election, so we'll know a lot more then. At that last meeting, in addition to closing out the work of the commission, we can also work on that transition issue.
MR. SMITH: We'll try and get some members of the new president's transition Committee for Justice.
DR. DAVIS: Let me ask one question. Is there a plan afoot that after this is all over there will be
published say a one-inch thick, paper-bound book entitled, The National Commission onwhatever, or is this just going to end up with a collection of minutes?
MR. ASPLEN: No. It will not be a collection of minutes. It will, however, be a collection of -- yes. There will be a book, as you anticipate. Much of that book will be a collection of recommendations and what we've already done, but it will be weaved together in an appropriate report form.
JUSTICE ABRAHAMSON: So that all of the work will be available in one place, but we're not going to rewrite all of the work groups' reports. We'll have an overall summary and then they'll be there.
DR. CROW: What happens to -- I keep thinking of my group right now, which has a big, fat report, and it may ultimately agree to do this. On the other hand, the commission may not want it, or may not agree.
MR. SMITH: What I understood was the working groups would submit and the commission would dispose as it saw fit. With respect to the Postconviction Working Group's work, we saw fit to endorse it unanimously at the time --
DR. CROW: Yes.
MR. SMITH: -- he fixes it for us. Right? Now, with respect to my working group's report, I don't think we ever thought that the commission would or should endorse it in that way. So we've submitted it, and if the commission sees fit to put it before the public, that's fine, but that was its purpose.
DR. CROW: Yes.
JUSTICE ABRAHAMSON: It's a report to --
DR. CROW: It's a report to the commission, and the commission does --
JUSTICE ABRAHAMSON: Right.
DR. CROW: -- does what it wants to with it.
JUSTICE ABRAHAMSON: That's right.
DR. CROW: I think so. Yes.
JUSTICE ABRAHAMSON: And it would so state in the introductory materials.
MR. SMITH: I think yours may be like that too, because the commission can't determine the future by adopting your report, so --
JUSTICE ABRAHAMSON: Right.
DR. CROW: It won't hurt if this report gets buried. That kind of thing's happened before.
JUSTICE ABRAHAMSON: No, no. I don't think it will be buried.
DR. CROW: Yes.
JUSTICE ABRAHAMSON: And then of course, you'd be very free to distribute it as a report that was submitted to the commission, but we would not stop you from –
DR. CROW: I should think we have rights to free speech, and if we want to publish it on our own we could do it.
MR. SANDERS: And it is anticipated that it will be, as was the report from the postconviction, printed and distributed through NIJ. Now, if that comes along with a unanimous approval by the commission or not --
DR. CROW: It says the same thing whether it's endorsed or not.
JUDGE REINSTEIN: You've got to give us the answers to all those formulas.
DR. CROW: That's right.
JUSTICE ABRAHAMSON: But is there anything else to come before the commission?
DR. CROW: There's a pride of authorship that's beginning to make an appearance here.
JUSTICE ABRAHAMSON: If not, we are adjourned. We will advise you of the time and place which is July, Washington, at least as of this moment, for the next commission meeting, and we'll also tell you about the November symposium and meeting as soon as the arrangements are made with the Kennedy School.
You are free to leave, and we will make arrangements for a skeleton crew to remain until 3:30, when there is a public comment session.
MR. ASPLEN: One more thing. I apologize. Dawn Herkenham had a baby boy --
DR. CROW: That's a suitor for your young girl.
MR. ASPLEN: -- Thomas John. Both mother and baby are healthy and happy.
(Whereupon, a short recess was taken.)

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